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JudgmentCHENGO NDUNE CHENGO VS The Republic5 min read

CHENGO NDUNE CHENGO VS The Republic

High Court at Mombasa High Court · · Wendy Micheni


(FROM THE CONVICTION AND SENTENCE DATED 28TH APRIL 2022 IN CR CASE NUMBER 970 0F 2019 IN THE  CHIEF MAGISTRARE’S COURT AT  MOMBASA (  Hon  R. AMWAYI SRM)


  1. The Appellant was charged on 6th may 2019. After the hearing, he was  convicted   and sentenced to pay a fine of Ksh 50,000 and in default to serve I year imprisonment  in each of the  7 charges  he was facing. The Sentences  to run consecutively.
  2. He filed  this appeal  raising two grounds; 1. That the trial magistrate erred by ordering the sentences to run consecutively contrary to clause 7.11 f the Kenya Judiciary sentencing guidelines and 2. The trial magistrate erred  by failing to consider the pre trial custody period of 2 years and 11 months contrary to section 333(2 )of the criminal procedure code.
  3. During the hearing of the appeal he abandoned the first ground and urged  the Court to consider the duration spent in remand custody as part of  his sentence as per provisions of the sentencing policy guidelines paragraph 7; 11 of 2016.

THE LAW

  1. Article 22 of the Constitution deals with the enforcement of the Bill of Rights. Subsection (1) states that every person has the right to institute court proceedings claiming that a right or a fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened.
  2.   Section 333(2) of the Criminal Procedure states: -

“Subject to the provisions of Section 38 of the penal Code (Cap 63) Every sentence shall be deemed to commence form and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this code.

Provided that where the person sentenced under sub section (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.”

  1. The requirement in section 333(2) in relation to time spent in custody is repeated in other sections of the law such as Section 371 (2) (a) of the CPC that: -

“(2) In passing a sentence, the court shall take into account –

  1. The period during which the accused person has been in custody;
  2. The Court’s duty  and the object of Section 3333(2) of the CPC has been explained in the Judiciary Sentencing Policy Guideline’s (under clauses 7, 10 and 7.11) as follows:

“The provisions to Section 333(2) of the Criminal Procedure Code obligates the court to take into account the time already served in custody if the convicted person had been in custody during the trial. failure to do so impacts on the overall period of detention which may result in an excessive punishment that is not proportional to the offence committed.

In determining the period of imprisonment that should be served by an offender, the court must take into account the period in which the offender, the court must take into account the period in which the offender was held in custody during the trial.”

  1. The importance of and court’s duty under Section 333(2) of the CPC in sentencing has also been buttressed in judicial pronouncements. See the Court of Appeal in Ahamad Abolfathi Mohammed & another vs Republic [2018] eKLR that, courts must give real effect to the section in sentencing; and that merely stating that you have taken account of time spent in custody is not sufficient if the sentence, in light of the overall circumstances of the case, does not show that the period spent in custody prior to sentencing had been taken account of.
  2. Accordingly, failure to take account of time spent in custody as provided in the proviso to section 333(2) of the CPC opens the accused to a real risk of serving a more severe sentence that is, lawfully prescribed or proportional to the offence. and, a convicted person who so suffers may found an action “for redress of a denial, violation, or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights” under Article 23 (1) and 165 (3) (b) of the Constitution.

Applying the test

  1. From the trial court typed proceedings, Judgment and sentence, the following relevant dates are discernible; the accused was arraigned in court on 6.6. 2019 He was not able to afford the bond terms and he remained in custody up to  the 11th Day May 2022 when he was sentenced.    Therefore he was in custody through out  his trial. He was sentenced   to serve a  cumulative prison term of 8 years.
  2. I have looked,  at the record and  there is nothing that shows that the trial court took account of the time spent in custody in passing the cumulative sentence of 8 years’ imprisonment. The appellant did not therefore, have the advantage of section 333(2) of the CPC.
  3. The court called for a sentence review report which shows that the Appellant   is 73 years old. Currently , his health is frail as he fell in the bathroom whereby he sustained a fracture of the spinal code. He requires specialized treatment. The report shows that  has kept in touch with  both his  nuclear and extended family and they are willing to accept him back home assist him with the treatment he needs. He is also remorseful and he regrets his actions.
  4. The prison authorities reported that he has reformed over the years he has been in custody and he is now well behaved with adopted interpersonal skills. Currently he is engaged in religious studies.
  5. The offences had no victim and the community had no likely reintergration and resettlement challenges
  6. The report recommended a non custodial period.
  7. I have considered that the time spent in custody was not taken into account in the sentence, the offender has been in custody for over 5 years and he has reformed. Further  he is of frail health and his  release  will not be a threat and his community is willing to accept him back.  He has also acquired life skills which will help him settle down.
  8. I there find that the objectives of his sentence have been served.   He has been punished, the society has achieved some justice and he has been rehabilitated.
  9. His continued stay in custody is actually a burden to the prison authority due to his advanced age and frail health.
  10. Under the circumstances since the trial court did not take the period spent in custody prior to the sentence, ground 2 of the appeal succeeds.   The appeal is allowed and the court sets aside the  cumulative sentence of 8 years. It is hereby substituted with a sentence of the time already spent in custody plus an additional  probation sentence  for 1 year after his release from custody.
  11. It is so ordered.

DELIVERED, DATED and SIGNED at MOMBASA on this 27th day of september, 2024.  Judgment delivered through Microsoft Teams Online Platform.

WENDY KAGENDO MICHENI

JUDGE

In the presence of:-

The Appellant, present in person

Ms       Maina for the state

CA      Bebora

    CHENGO NDUNE CHENGO VS The Republic CHENGO NDUNE CHENGO VS The Republic